Justice O'Connor Sighting: Did She Just Reference 'Duck Hunt'?

Since retiring from the Supreme Court in 2005, Justice Sandra Day O’Connor has kept herself busy with television appearances and making speeches at law schools. She also sits by designation when a circuit court is running low on judges.

The Eleventh was treated to an O’Connor appearance, and better yet, an O’Connor opinion, earlier this week. The defendant, Jason McGuire, was depressed and began firing a pistol willy-nilly into the night, necessitating a police response. He fired his last bullet in the air, in the general direction of a police helicopter. He was convicted of attempting to wreck, damage, or destroy an aircraft.

He challenged the sufficiency of the evidence as well as the sentencing enhancement for a violent crime.

Because, you know, shooting at a police helicopter is not a violent crime, right?

It doesn't really matter though, does it? The jury's weighs the credibility of conflicting testimony. McGuire argued that the jury couldn't have credited the officer's testimony, as it was physically impossible for him to take aim at the circling chopper, as he was standing still.

"Any person who has ever hunted anything -- even electronic ducks -- knows that a person can fire a round quickly in the direction of a moving object without tracking it first; they might well miss, but they would still mean to hit the target."

In video game parlance, we call that "spray and pray." Fire haphazardly and hope your bullets hit first.

As for the "violent crime" enhancement -- it's not as obvious as common sense would lead you to believe. The crime, on the face of the statute (not as applied) must have "as an element, the use ... of physical force against the person or property of another" or "involv[e] a substantial risk that physical force ... may be applied."

The statute includes the crime of "disabling" an aircraft, which could be done by deflating the tires. O'Connor cited the statute's jurisdiction, which only applies to "an aircraft in flight," defined as "the moment all external doors are closed" until "one external door is opened to allow passengers to leave."

Setting fire to, damaging, destroying, or wrecking an aircraft with passengers aboard is obviously a crime of violence. Apparently, so is deflating the tires with passengers aboard. Force is still being used against the property of another. It also involves "manifest indifference to the ... wellbeing of the passengers."

"[W]e would not say that laying spikes across a roadway is a non-violent crime because [it] is not a forceful act. It still involves an intentional act against another's property that is calculated to cause damage and that is exacerbated by indifference to others' wellbeing."